Prohibited Behaviour Orders, two years on

Roxanne Moore

Western Australia

The Prohibited Behaviour Orders Act 2010 (WA) was introduced as a means of constraining offenders with a history of anti-social behaviour. After sentencing an offender aged 16 years and over, a court may issue a Prohibited Behaviour Order (‘PBO’) where the court is satisfied that an offender, within three years of being convicted of an offence involving anti-social behaviour, has been convicted of another offence involving anti-social behaviour, and the offender is likely to commit more unless otherwise constrained (ss 6, 8). The court may impose a PBO on certain activities and behaviours of an offender that are ‘reasonably necessary’ to reduce the likelihood of the person re-offending, for up to two years (ss 10(2), 12). A breach of a PBO is an offence carrying a penalty of a fine and/or imprisonment (s 35), and in this way the legislation criminalises otherwise lawful behaviour.

There is also a ‘naming and shaming’ component to the legislation, whereby certain personal details of the offender and the constraints imposed by the PBO are published online (s 34(2)). To date, the Act has not been widely utilised by prosecutors or judges. So far, the details of only three offenders and their PBOs have been published online.

The United Nations Committee on the Rights of the Child recently called for the abolition of the legislation on the basis that the Act breaches the right to privacy of the child. Publication of child offender details would, on first glance, seem contrary to articles 16 and 40 of the Convention on the Rights of the Child. However, the Act contains certain protections, such as the prohibition of publication of details capable of identifying an offender’s conviction in the Children’s Court (s 34(3)(c)). Further, the court may order that an offender’s details not be published if, in the opinion of the court, there are circumstances justifying such an order (s 34(4)).

It is difficult to predict whether the Act’s safeguards will protect the right to privacy of young offenders. It will also be interesting to see if there is any demonstrable reduction in the recidivism of persons subject to PBOs, particularly young offenders.

ROXANNE MOORE is Principal Associate to the Chief Justice of Western Australia.